New York State Court of Claims

New York State Court of Claims

RADCLIFF v. STATE OF NEW YORK, #2009-038-528, Claim No. 112906, Motion No. M-75318


Defendant’s motion to dismiss granted where claimant did not file the claim within 90 days of accrual

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks compensation for damages allegedly sustained as a result of medical negligence on the part of defendant’s employees while claimant was incarcerated at Franklin and Camp Gabriels Correctional Facilities in Franklin County. The claim was filed on October 20, 2006, issue was joined by an answer that was filed on October 31, 2006, and the claim was placed on the unassigned calendar of the Albany District of the Court of Claims (see 22 NYCRR § 206.4 [a]). Subsequent to claimant’s release from incarceration, the claim was transferred to this Court’s Individual Assignment Calendar on May 20, 2008. By letter dated June 4, 2008, claimant was notified that a preliminary conference was to be conducted by telephone conference call on July 17, 2008, and claimant was directed to notify chambers of a telephone number at which he could be reached. By an undated letter acknowledged by the Clerk of the Court on July 17, 2008, claimant submitted notification of his current address. He did not, however, notify the Court of a telephone number at which he could be reached for the preliminary conference, and he defaulted in appearing at that conference. By notice of motion dated July 18, 2008 and made returnable September 3, 2008, defendant moved to dismiss the claim for want of prosecution (see CPLR 3216), based upon claimant’s failure to file a note of issue within 90 days of a demand therefor that had been served by certified mail, return receipt requested on October 18, 2007 (see Cagino Affirmation, ¶ 7; Exhibit E) and served again by ordinary first class mail on May 16, 2008 (id., at ¶ 8; Exhibit F). Noting that the motion to dismiss had been served upon claimant at the address that preceded claimant’s latest notification of change of address, the Court adjourned the return date of the motion to October 15, 2008 and directed defendant to re-serve the motion upon claimant at his most recent address, and to file a new affidavit of service. Defendant did so, and by documents denominated “Notice of Motion” and “Notice of Petition” filed on October 9, 2008, claimant requested “an extension of time and a change of venue.” Claimant’s request for an extension of time was construed as a request for additional time to respond to defendant’s motion, and claimant was advised that such request was granted, and the return date of defendant’s motion to dismiss was adjourned to January 7, 2009 (id.).[1] By an unsworn “affidavit” received by the Court on January 2, 2009, claimant argued in support of an order transferring venue of the action from Albany County to Monroe County. Claimant’s submission did not address defendant’s motion to dismiss the claim pursuant to CPLR 3216, nor did claimant request any further extension of time.

CPLR 3216 is a procedural mechanism for dismissal of an action in which a party has neglected to prosecute the action. The rule sets forth three conditions precedent to the making of a motion to dismiss: (1) issue must have been joined in the action; (2) one year must have elapsed since joinder of issue; and (3) the moving party must serve by certified mail a written demand on the claimant to serve and file a note of issue within 90 days or suffer dismissal (hereinafter a “90-day demand”) (see CPLR 3216 [b]). If the claimant does not timely file and serve a note of issue in response to the 90-day demand, the claim should be dismissed unless claimant “shows justifiable excuse for the delay and a good and meritorious cause of action” (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 504-505 [1997] [in light of the purpose underlying CPLR 3216, it would be an improvident exercise of discretion to deny a motion to dismiss where claimant has not offered a justifiable excuse for failing to comply with a 90-day demand]).

To be sure, claimant filed some discovery-related documents in August 2008, which gives some indication of claimant’s desire to continue to prosecute the claim.[2] However, such filing was accomplished after the initial service of defendant’s motion to dismiss, and more than 90 days after the date of defendant’s initial and subsequent service of the 90-day demand on October 18, 2007 and May 16, 2008. More importantly, claimant did not file a note of issue in response to defendant’s demand therefor,[3] nor did he request an extension of time within which to do so. In response to the motion to dismiss, claimant has offered no excuse for his failure to timely file and serve the note of issue, nor has he submitted an affidavit of merit of the claim, which would defeat the instant motion (see Baczkowski v Collins Constr. Co., supra). Accordingly, the Court is constrained to grant defendant’s motion to dismiss the claim for want of prosecution (see CPLR 3216 [e]).

Claimant’s unsworn contention that “defendant failed to make any application advising the plaintiff [sic] of any attempt to move the court for a dismissal of the action at bar” (see Radcliff “Affidavit” dated Oct. 7, 2008, ¶2) is unavailing. Defendant has submitted proof in admissible form that defendant did, in fact, serve the 90-day demand and the motion to dismiss upon claimant (see Cagino Affirmation, ¶¶ 7, 8; Exhibit E [including Affidavit of Service of Ellen Lyons, sworn to Oct. 18, 2007]; Exhibit F [including Affidavit of Service of Ellen Lyons, sworn to May 16, 2008]; Affidavits of Service of Ellen Lyons, sworn to July 23, 2008 and Sept. 17, 2008). Further, claimant’s suggestion that his failure to file a note of issue should be overlooked because he is not a lawyer and is proceeding pro se (see Radcliff “Affidavit” dated Oct. 7, 2008, ¶4) is also unavailing. While pleadings submitted by pro se litigants may be held to less stringent drafting standards than pleadings prepared by attorneys (see Gittens v State of New York, 132 Misc 2d 399, 401, fn 2 [Ct Cl 1986]), and courts may, in certain circumstances, accommodate missteps by incarcerated pro se claimants (see Matter of Anderson v McCoy,182 Misc 2d 842, 843 [Sup Ct Cayuga County 1999] [technical requirements may be overlooked when rigid application would deprive an incarcerated inmate of access to court]; Joyner v State of New York, 133 Misc 2d 86 [Ct Cl 1986] [pro se incarcerated inmate confined in keeplock was granted an extension of time to serve notice of appeal]), the mere fact that claimant is prosecuting this claim pro se does not provide an overall excuse from compliance with procedural requirements (cf. Bottom v Murray, 278 AD2d 817 [4th Dept 2000] [pro se litigant not relieved of compliance with jurisdictional service requirements]). Here, claimant was no longer incarcerated when defendant served its 90-day demand upon him, and there is nothing so complex or confusing about the demand to serve and file a note of issue that claimant’s pro se status should excuse compliance with it.

To the extent that claimant’s request for a change of venue is properly before the Court, it is denied as moot.

It is

ORDERED, that Motion No. M-75318 is GRANTED, and claim No. 112906 is DISMISSED.

March 24, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 112906, filed October 20, 2006;

(2) Verified Answer, filed October 31, 2006;

(3) Demand to File a Note of Issue, filed October 19, 2007;

(4) Order [of] Transfer of Claim, dated May 20, 2008 and filed May 27, 2008;

(5) Correspondence of Nancy Schulman, Principal Law Clerk, dated June 4, 2008;

(6) Correspondence of Robert T. DeCataldo, Chief Clerk, dated July 17, 2008, with attachment;

(7) Notice of Motion to Dismiss, dated July 18, 2008;

(8) Affirmation of Paul F. Cagino, AAG, dated July 18, 2008, with Exhibits A-F, including;

Affidavit of Service of Ellen Lyons, sworn to October 18, 2007;

Affidavit of Service of Ellen Lyons, sworn to May 16, 2008;

(9) Affidavit of Service of Motion of Ellen Lyons, sworn to July 23, 2008;

(10) “Verified Bill of Particular,” filed August 27, 2008;
(11) “Demand for Statements, Names/Addresses of Witnesses, Photographs, Medical Reports, Authorizations, Collateral Source of Information & Accident/Incident Reports, filed August 27, 2008;

(12) Correspondence of Hon. W. Brooks DeBow, dated September 8, 2008;

(13) Affidavit of Service of Motion of Ellen Lyons, sworn to September 17, 2008;

(14) Notice of Motion, dated October 7, 2008;

(15) Notice of Petition, dated October 7, 2008;

(16) Proposed Order to Show Cause;

(17) “Affidavit” of James Radcliff, Jr., dated October 7, 2008;

(18) Correspondence of Hon. W. Brooks DeBow, dated December 10, 2008

(19) “Affidavit” of James A. Radcliff, Jr., dated December 18, 2008.

[1]. Claimant was advised by the Court that “[y]our request for a change of venue cannot be granted as the request is not in proper form, nor does your submission demonstrate an adequate basis for a change of venue (see CPLR 510)” (Correspondence, dated December 10, 2008).
[2]. Claimant’s unsworn “Affidavit” states that claimant has filed a discovery motion and a bill of particulars (see “Affidavit” of James Radcliff, dated Oct. 7, 2008, ¶4). The Court’s file contains two documents that were filed on August 27, 2008 – a document captioned as a “Verified Bill of Particular,” which appears to be claimant’s demand for a bill of particulars from defendant, and a document that appears to be an omnibus discovery demand seeking information, documents and other items from defendant.
[3]. Claimant’s unsworn “Affidavit” states that claimant has filed a notice of issue (see “Affidavit of James Radcliff,” dated Oct. 7, 2008, ¶ 4). However, there is no note of issue on file with this Court nor is there any other proof that claimant has filed a note of issue.